Photograph by Gabe MelineLEAFY GOALS: Activist and author Ed Rosenthal, pictured at last week's Harvest Dance in Sebastopol, is among many who see legalization in California as simply a matter of time.

Legalization: Up in Smoke?

Not quite yet, say marijuana advocates, as budding support for a revised 2012 proposition grows

By Kylie Mendonca

Never has California been so close to legalizing marijuana as it was in September this year, when polls showed 49 percent of likely voters in support of Proposition 19, the initiative that would have legalized recreational marijuana use for adults while allowing local governments to collect a tax on its sale. By late October, however, the same field polls showed support among Californians sinking, and on Nov. 2, marijuana legalization failed by just 4 percent statewide.

Yet many legalization activists are calling Prop. 19 a victory, if only for the dialogue and base of support it created. The initiative won unprecedented support from various law-enforcement groups, the NAACP, the National Latino Officers Association and the SEIU by casting legalization as both a civil rights issue and potential job creator.

"It puts us in a place we've never been in before," says Bay Area attorney Chris Conrad, who helped draft the initiative. "We're closer than we've ever been."

In the wake of Prop. 19's defeat, the sentiment heard most often from marijuana advocates is that legalization in California is no longer a question of if, but of when and how. Legalization advocates statewide anticipate putting the issue before voters in 2012 as a reworded, more detailed proposition, having learned from the experience of Prop. 19.

Last weekend, Conrad spoke as part of a five-person panel at Sebastopol's Harvest Dance, a celebration of the marijuana harvest season. Discussion centered on why Prop. 19 failed and why 2012 would be ripe for another shot at legalization.

Key among the reasoning for success in 2012 is that proponents need to pick up just four percentage points to pass some kind of legalization, which may happen with almost no effort on the part of legalization advocates. Younger voters tend to favor legalization and also show up in greater numbers for presidential elections. By the simple fact that more young people in favor of legalization will reach voting age in the next two years, some marijuana activists are predicting a boon of up to two percentage points.

Activist and author Ed Rosenthal, who was once deputized by the city of Oakland as an official marijuana grower for the city's medical marijuana industry, agrees. "I don't think it's so much that people's attitudes have really changed," Rosenthal opines. "I think it's that the older people are dying off and the younger people have a more relaxed attitude."

But whether activists can pick up two more additional points depends largely on the wording of the law that's written. A post-election survey funded by legalization proponents and conducted by polling specialists Greenberg Quinlan Rosner found that 50 percent of Californians already support legalization. According to the GQR survey, 31 percent of voters who voted no on Prop. 19 agreed with the following statement: "I believe marijuana should be legalized or penalties for marijuana should be reduced, but I opposed some of the specifics of Proposition 19."

That's largely the message that many "No on 19" activists campaigned on, especially in Northern California.
Geographically, Sonoma County sits at the northern end of a string of coastal counties, reaching down to Santa Barbara, which voted in favor of Prop 19. Fifty-four percent of Sonoma County voters were in favor of Prop. 19, while more than 62 percent of Marin County voters approved the initiative, among the highest approval ratings in the state.

Napa County, meanwhile, rejected the initiative. But so did the largest pot-producing counties in the state. The so-called green triangle comprising Mendocino, Humboldt and Trinity counties shut down the initiative, highlighting one of the biggest obstacles to legalization: a fractured marijuana-advocacy base.

"Some people you sit down and smoke a joint with really don't care if you go to jail," Conrad says, but though "they may grow great weed, they're not going to vote against their pocketbooks."

The fact is that many growers don't want legalization; they want the higher risk and higher payoff that comes with uncontrolled substances. And on the opposite side of the debate, patient-advocacy groups want their medicine to remain untaxed and unassociated with recreational use. Americans for Safe Access, a well-respected medical-marijuana advocacy group, declined to support or oppose the initiative publicly, while other medical groups, including the California Cannabis Association, made statements against Prop. 19.

There were several portions in the text of Prop. 19—a lengthy, open-to-misinterpretation document—that failed to win over marijuana users. Among the troublesome provisions was an added criminal penalty for smoking marijuana in the presence of minors. Virtually unenforceable, the inclusion was meant to resonate with straight-laced parents but wound up alienating those wanting to smoke freely in their homes.

A final nail in Prop. 19's coffin was driven by Gov. Arnold Schwarzenegger's signature on an 11th-hour bill that decriminalized marijuana possession in California. Senate Bill 1449, which goes into effect Jan. 1, 2011, changes personal possession of less than an ounce of marijuana from a misdemeanor to an infraction, essentially the same punishment as a jaywalking ticket. A $100 fine will apply to citations issued, but a violator will no longer have the obligation to appear in court over small possession. For many voters, the bill represented sufficient change.

Though state law enforcement officials arrested more than 17,000 people for pot-related felonies last year, and another 60,000 Californians were cited for misdemeanor possession, according to the California Bureau of Statistics, no one is serving time for possession of less than an ounce of marijuana. But that doesn't mean marijuana possession doesn't lead indirectly to incarceration, says Omar Figueroa, a cannabis defense attorney who is in favor of legalization. "This would cause a revolution in search and seizure law," he says, "because smelling marijuana would no longer be reason to search someone's house or person."

So what's next for 2012? The next proposed state law would likely offer more protection for medical marijuana, which could be in jeopardy if Republican Steve Cooley is elected to the attorney general's office. At press time, Cooley and opposing attorney general candidate Kamala Harris were locked in a too-close-to-call race with 1 million ballots left to count, and Cooley, as district attorney of Los Angeles County, has stated on record that he intends to apply federal law to state dispensaries. The federal government, which has yet to recognize marijuana as a therapeutic drug (though 13 states and the District of Columbia have), is not becoming more relaxed. In a recent statement, Attorney General Eric Holder promised to "vigorously enforce" federal law, no matter what California voters decided.

Future proposals will also almost certainly include details on taxation and regulation. Voters will be looking for exactly how those taxes will be levied; whether or not they will be earmarked; and how they will directly contribute to the state general fund. With added protections for landlords and employers, the next legalization initiative may include concessions and protections for nearly everyone involved—except, of course, for those who oppose legalization on any ground.

More than anything, future efforts to legalize, regulate and tax marijuana will rely on a solidified base. In Sebastopol, Stevie DeAngelo of Americans for Safe Access sat on the panel with Conrad, making modest pleas for unity and healing within the movement.

"We really need people who love cannabis more than money to be involved with this," he says, "or the people who love money will take it over."